Powless v. Milwaukee County
| Decision Date | 02 January 1959 |
| Parties | Ramona POWLESS, Appellant, v. MILWAUKEE COUNTY, a municipal corporation, et al., Respondents. |
| Court | Wisconsin Supreme Court |
Whyte, Hirschboeck, Minahan, Harding & Harland, Milwaukee, for appellant.
Moore & Moore, Raymond J. Moore, Gary E. Moore, Milwaukee, for respondent.
The statutes involved, so far as material, read:
Sec. 101.01(11) 'The term 'safe' or 'safety' as applied to an employment or a place of employment or a public building, shall mean such freedom from danger to the life, health, safety or welfare of employes or frequenters, or the public * * * as the nature of the employment, place of employment, or public building, will reasonably permit.'
With respect to whether or not the defendants have so constructed and maintained the stadium premises as to comply with the statute, it should be kept in mind that this is a sports arena used for baseball, and it should be as safe as a structure used for baseball purposes reasonably can be. The trial court held that defendants had complied with the safe-place statute.
It is undisputed that the backstop screen affords complete protection to those seated behind and under it against the danger of being hit by foul balls. It is likewise undisputed that, from a structural or engineering standpoint, the same or similar type of screening could be extended the entire length of the lower grandstand. The evidence further showed that no other major league stadium provides a screen or netting all around the playing field, and that the position and size of the backstop in the Milwaukee County Stadium comply with the standards and customs of all major league baseball parks.
The requirements of the safe-place statute do not make an owner of a public building an insurer of the safety of his premises. Sykes v. Bensinger Recoration Corporation, 7 Cir., 1941, 117 F.2d 964. As pointed out in that case, the owner's duty under the statute to provide a safe place for frequenters is an absolute one, but the term 'safe' is relative, not absolute, and what is a safe place depends on the facts and conditions of each case. As provided in the statute itself, the duty is to provide a place which is as safe as the nature of the public building will reasonably permit.
Defendants cite a number of cases from other jurisdictions holding, in effect, that there is no duty on the part of the owners or operators of baseball parks to provide safeguards against foul balls for spectators other than those seated immediately behind home plate. These cases are not helpful since they come from states where there is no safe-place statute; the question involved was one of common law negligence.
The defendants admit that foul balls are known to fly into the unscreened areas of the grandstand and the evidence shows that during the 1953 season 50 spectators were injured by foul balls, 14 during the 1954 season up to and including the time that plaintiff was hit. The attendance at the stadium during each of those seasons was approximately 2,000,000 paid admissions.
Plaintiff argues that if all the spectators in the stands were employees, the erection of a protective screen between them and flying objects incident to the employment would doubtless be required for compliance with the statute. As pointed out in Miller v. Paine Lumber Co., 1929, 202 Wis. 77, 227 N.W. 933, 230 N.W. 702, an employee occupied with the performance of his work might not be able to see or anticipate certain obstructions or interferences likely to injure him. But what we have here is not an employment situation. In this case the nature of the stadium is not that of a place of employment and the spectators are not employees. The grandstand is constructed for the use of spectators who are there because they want to see a ball game, and it is during the course of the game that foul balls are hit. Attendance is voluntary and, in further contrast to an employment situation, spectators have a choice as to where they will sit.
It is the nature of a place which governs the reasonableness of employing certain safety measures. The nature of the stadium is that of a place of public assembly for the enjoyment of sports. It is known not only to the owners, but to the spectators who attend the games, that baseballs are frequently hit foul into the stands. Plaintiff knew this; she testified that she had attended 15 to 20 Braves games before the accident and in practically every game she saw balls batted into the grandstand and into the general area where she sat on the occasion she was hit. She made no effort to obtain a seat behind the back-stop screen although she knew that seats in that area are available.
As this court observed in Lee v. National League Baseball Club, 1958, 4 Wis.2d 168, 177, 89 N.W.2d 811, 816, of a spectator who buys a ticket for a seat in an unprotected section and is struck by a batted ball:
'Such a person knows in advance that the park owner or operator has taken no steps to guard against such a contingency happening, as well as that it is likely to occur.'
In Prehn v. C. Niss & Sons, Inc., 1939, 233 Wis. 155, 157, 288 N.W. 736, this court said:
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